Attorney-general of the Federation V. Chief Patrick Ibikunle Fafunwa-onikoyi & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

GARBA, J.C.A.

The appellant in this appeal had filed six (6) motions as follows:-

(1) a motion on notice for departure from the rules of court, stay of further proceedings in the court below and discharge of the order of interim injunction made by the court below, filed on the 9/11/05.

(2) a motion on notice filed on 30/11/05 for an order setting aside the ruling of the court below delivered on the 25/11/05.

(3) two (2) motions on notice filed on the 17/2/06; one for an order setting aside the ruling of the court below delivered on the 25/11/05 and the other for an order for departure from the rules of court.

(4) a motion on notice filed on the 20/2/06 for leave to amend appellants’ notice of appeal dated 7/11/05 by addition of single ground of appeal, and

(5) a motion on notice filed on the 6/3/06 for departure from the rules of court.

On the 9/3/2006 when the above motions came up for hearing, learned senior counsel for the appellant; Chief Afe Babalola, SAN, notified the court of the withdrawal of the motion filed on the 30/11/05 for an order setting aside the ruling of the court below delivered on the 25/11/05. A notice of withdrawal of the said motion dated the 17/2/2006 had earlier been filed by appellants’ counsel.

Mr. Kola Awodein, SAN, for the 1st – 4th respondents to the appellant’s motions and Mr. Lawal Pedro, for the 5th respondent did not object to the withdrawal. The motion was accordingly struck out by the court on that day. Mr. Awodein, SAN then informed the court that he had filed a notice of preliminary objection on the 17/2/2006 in which he sought orders striking out the notice of appeal dated 15/10/2005, or alternatively, dismissing and/or striking out the appellant’s motions dated 9/11/2005 and 30/11/2005. He had also filed a notice of additional orders dated 20/2/06 in respect of the preliminary objection seeking orders striking out the notice of appeal dated 7/11/05 and dismissing or striking out appellants’ motion dated 17/2/06.

After some arguments, learned counsel agreed that the notice of preliminary objection should be taken and considered first. Due to the controversy and contentious nature of the motions and the notice of preliminary objection, the court directed learned counse to file written submissions on both the preliminary objection and the pending motions. Mr. Awodein, SAN and Mr. Pedro conceded to an interim order for stay of the proceedings in the court below be made pending the determination of the preliminary objection and the motions by this court. Chief Babalola, SAN requested that the said order be made and the court accordingly made the interim order.

The motions and the preliminary objection were then adjourned to the 06/06/06 for adoption of the written submissions by learned counsel.

On the 06/06/06, after deeming all written submissions as duly and properly filed and served, Mr. Awodein, SAN, adopted and relied on his written submissions in support of the notice of preliminary objection filed on the 11/4/06 as well as the reply filed on the 1/6/06. In his oral submissions, he emphasised that the appellants’ notices of appeal are attacking the order of interim injunction and refusal by the court below to discharge same. According to learned senior counsel, the interim order of injunction lapsed on 25/11/05 and the two (2) notices of appeal are now merely academic. He urged the court to strike out the notices of appeal and all the appellants’ motions. Professor T. Osipitan, SAN for the 5th respondent adopted and relied on the written submission filed 5/6/06 on all the appellants’ motions and urged us to strike out the notices of appeal and all the motions related thereto.

Chief Babalola, SAN, adopted and relied on the written submissions on the pending motions filed on 5/5/06 and the reply on points of law filed on 5/6/06. In his oral submission, he urged us to dismiss the preliminary objection and grant all the prayers in the appellants’ motion on the ground that the preliminary objection is based on misrepresentation of facts, misconception and misinterpretation of the law. That the notices of appeal raise issues of jurisdiction and bias which are live for determination in the appeals.

Before delving into the submissions of learned counsel, I would like to say that their agreement that the preliminary objection of the 1st – 4th respondents should be taken first represent the position of law on the practice and procedure of the courts in such situations.